The art of war and the use of Human Shields

  
“To win one hundred victories in one hundred battles is not the acme of skill.

To subdue the enemy without fighting is the acme of skill.”

Sun Tzu – Chinese Military Strategist, 5^th Century BC

As far as Major Nitin Leetul Gogoi would have been concerned he was following exactly what the much acclaimed 5^th Century BC Chinese military strategist Sun Tzu, or for that matter even our own Kautilya, whose treatise on warcraft, Arthashatra, is revered even to this day, would have recommended.

But little would he have imagined that his act of stringing up Kashmiri shawl weaver Farooq Ahmad Dar to the bonnet of a Jeep to prevent close to 1200 “civilians” from stone-pelting and storming the polling booth to harm poll officials and other civilians, would have led to so much of debate and condemnation. Human rights’ bodies and political commentators and opposition politicians alike have come out in various degrees of condemnation of the alleged use of Dar as a “human shield” by the Major and thereby violating human rights.   

What added fuel to the fire was the subsequent and totally unexpected act of commendation for Major Gogoi by the Army brass for his exemplary service against subversives making the debate shriller prompting the Human Rights Watch to dub the reward an act that undermined accountability and the stature of the military.

No doubt using human shields, civilian or otherwise, is a condemned act under several conventions, treaties, and protocols under international humanitarian law which prohibit the use of humans as shields in any circumstances.

Article 3 of the Geneva Convention III, while referring to the treatment of POWs makes the taking of hostages illegal.  It states: “The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favor or impede military operations. The parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military objectives.”

Though the noise over the incident has now simmered down, however, what had indeed been missing in the debates was a nuanced view of the incident, and in fact the whole scenario in Kashmir, that takes into consideration international law and the doctrine of “proportionality” in such situations, point out experts.  

Ground Zero 

The Gogoi-Dar incident might very well fit the definition as the use of a human shield. But by quoting the Geneva Convention those wanting to corner the NDA government and the Army, also willy-nilly endorse three often unstated aspects:

1. For starters it means that it is a war out there, something that the Army Chief General Bipin Rawat stated in as many words albeit calling a dirty one that needed to be fought innovatively. 
2. Thereby using Dar as a shield is tantamount to his being a prisoner of war. 
3. And three, at the core of the issues it that there are conflicting parties on either side who have an end objective in mind to be achieved through violent means, which in this case might be construed to be the militants on the one hand and the Indian Army, a state instrument, on the other.

The use of human shields is nothing new. Military strategists espouse that human shields on the battlefield could directly affect not just tactical maneuvers but also strategic decisions at a higher level. Not surprisingly from wars in ancient Egypt and Rome to the World Wars and the more recent Gulf wars, apart from many other conflict situations in Africa,  Arabia, and the Balkans, the use of human shields has been rampant.

However, a deeper and nuanced reading of Article 3 of the Geneva Convention apart from the International Humanitarian Law (IHL) is perhaps necessary to understand the complexities of the use of human shields and the degrees of justification or otherwise for it. Rule 97 of the Customary IHL lays down the definition of human shield.  

Definition

The important point to be noted is that all international conventions define and classify human shields as noncombatants whose presence protects certain objects or areas from attack. However, one also needs to note variations and exceptions to this definition depending on situations and the distinction of human shields. Scholarly work on this is voluminous but a common thread in most of these studies is that they make a distinction among the kinds of human shields and look at how they fit in, or otherwise, into the definition.   

For instance, the work by Israeli scholar and legal luminary Amnon Rubinstein and Yaniv Roznai looks at human shields within the ambit of IHL which consists of four cardinal principles at its core – namely distinction, military necessity, unnecessary suffering, and proportionality.  The first and the last are perhaps the most important of these principles and relevant in the current discussion.

The principle of proportionality prohibits attacks against military objectives which are “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”.  But the issue is how it is applied and something that all parties invariably dispute in any situation.

Hence Rubinstein and Roznai propose a formula based upon several elements for adjusting the proportionality analysis in cases involving human shields, particularly in unconventional warfare without digressing from the basic tenets of the IHL.  

Voluntary & Involuntary Shield

First and foremost they propose two basic requirements for war-like situations. The first is the existence of a military target protected by human shields and the second is adequate advance warning to the parties concerned.  Further they go on to demarcate human shields into two categories, voluntary and involuntary or unknowing civilians who serve as human shields. In both cases, they propose differential treatment of the Proportionality Doctrine on the battlefield.

Strictly speaking, Ahmad Dar would fit into the second category of human shield. And while one may argue the validity of Major Gogoi’s act, what the numerous debates appeared to have missed out was the peculiar situation in the Valley where hordes of civilians are actually behaving like voluntary human shields for gun-wielding non-state actors who often escape the security forces under the protective cover of stone pelting.   

Rubinstein and Roznai assert that voluntary human shields who protect offensive weapons that fire at the adversary are to be considered as directly participating in warfare and as such should not be considered in the proportionality assessment as opposed to involuntary shields.  

Where the security forces are concerned, in reality, however, this is easier said than done and as evidenced in the Army chief’s statement that it would have been easier to deal with the situation if the stone pelting civilians were actually firing guns. However, a reading of the IHL would show a way out.  

While a continuous shift of the conduct of hostilities into civilian population centres has led to an increased mix of civilians with armed actors and action shifting close to military operations, IHL clearly articulates the notion of direct participation by voluntary human shields in hostilities which refers to specific acts carried out by individual as part of conduct of hostilities between parties to an armed conflict, in this case between the Indian security forces and Kashmiri militants.

The International Committee of the Red Cross (ICRC) states that in order to qualify as direct participation in hostilities, a specific act must meet the following cumulative criteria:

1. The act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury, or destruction on persons or objects protected against direct attack (threshold of harm), and

2. there must be a direct causal link between the act and the harm likely to result either from that act, or from a coordinated military operation of which that act constitutes an integral part (direct causation), and

3. the act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another (belligerent nexus).

A close study of the practice of stone pelting and open hostility by civilians towards the security forces and support for militants would perhaps meet all the above three criteria.  

To further deconstruct the complexities of the subject the ICRC goes on to provide an

interpretive guidance on the notion of Direct participation in hostilities under international humanitarian law where in it clearly states that according to “treaty and customary applicable in international and non-international armed conflict, civilians enjoy protection against direct attack “unless and for such time” as they take a direct part in hostilities. Civilians directly participating in hostilities do not cease to be part of the civilian population, but their protection against direct attack is temporarily suspended. The phrase “unless and for such time” clarifies that such suspension of protection lasts exactly as long as the corresponding civilian engagement in direct participation in hostilities. However, it does not define the nature of the hostilities leaving the interpretation to respective nations and parties concerned. Nor does it define direct attack.

Disclaimer: The writer does not claim to be an expert either on war craft or international humanitarian law. The opinions expressed here are based on an in depth perusal of research and international law on the subject.