The New York Times
earlier this month defended Hamas against charges that the group uses human shields by offering an overly narrow definition that appears to mislead readers about international law. After quoting Israeli criticism of Palestinian use of human shields, reporters Anne Barnard and Jodi Rudoren countered
, “There is no evidence that Hamas and other militants force civilians to stay in areas that are under attack — the legal definition of a human shield under international law.”
Where does their definition come from? Is there a definitive definition of “human shield” in international law at all? The newspaper did not respond to multiple requests for substantiation of the reporters’ claim. It is clear, though, that many authoritative sources referencing human shields contradict the newspaper’s purported definition.
An International Committee of the Red Cross database of customary international law, for example, includes a page dedicated to what it calls “Rule 97: Human Shields
,” which explains, “Under the Statute of the International Criminal Court, ‘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 in international armed conflicts.”
Under the subheading “Definition of human shields,” the ICRC likewise asserts,
The prohibition of using human shields in the Geneva Conventions, Additional Protocol I and the Statute of the International Criminal Court are couched in terms of using the presence (or movements) of civilians or other protected persons to render certain points or areas (or military forces) immune from military operations.
The definition section, and the page itself, closes by summarizing: “It can be concluded that the use of human shields requires an intentional co-location of military objectives and civilians or persons hors de combat with the specific intent of trying to prevent the targeting of those military objectives.”
So three times in its discussion of human shields, the ICRC defines the phenomenon as requiring only the “presence” of civilians, as opposed to civilians being “forced” to stay in an area under attack.
And while the page states that most examples of human shielding described in military manuals have been “cases where persons were actually taken to military objectives,” a related ICRC page
shows that prohibitions in many military manuals are made without regard to whether or not civilians are coerced into remaining near military objectives. (See, inter alia
, Spain’s laws of armed conflict manual, which states that “Weapons must be deployed on the ground in such a way as to avoid using the civilian population as a shield,” and the US Manual for Military Commissions, which says threatens punishment for “Any person subject to this chapter who positions, or otherwise takes advantage of
, a protected person with the intent to shield a military objective from attack.”)
Perhaps the The New York Times would not substantiate their claim that “the legal definition of a human shield under international law” requires coercion, then, because they cannot substantiate it.
The newspaper stumbled again when it reported
, as an undisputed fact, that the Gaza Strip is still under Israeli occupation. A July 31 story by Jodi Rudoren asserts that in the years since Israel’s 2005 withdrawal from the Gaza Strip, the country “has maintained an uneasy occupation” there.
Another New York Times
reporter, Steve Erlanger, was flatly wrong when he recently referred
to the this question. Israel “insists it has not occupied the territory since withdrawing its troops and settlers in 2005,” he wrote. “But it controls Gaza’s borders.”
Israel controls its own side of its shared border with Gaza, but certainly does not control the territory’s border with Egypt.
The newspaper should correct this error. It should also substantiate, or otherwise correct, the assertion that a legal definition of human shield requires coercion. And it should publish a clarification noting that some prominent legal scholars disagree with the view that Israel still occupies the Gaza Strip.