According to international law, using human shields constitutes a war crime, while the party responsible for the death of human shields is not the one killing them - if the attack is proportionate - but instead, the one deploying them. Indeed, the very day Russia invaded Ukraine, Human Rights Watch published a Q&A On Occupation, Armed Conflict and Human Rights stating that if an attack is proportionate armed forces can legitimately strike "a military target that is making use of human shields" - though HRW also notes that "it is shielding only when there is a specific intent to use the civilians to deter an attack."
Hence, by accusing Ukraine of using human shields Russia is in effect claiming that it is not legally responsible for the civilians it kills. And while Russia might be losing the info-war, the legal Trojan Horse of its aggression - the human shielding accusation - is not yet receiving significant opposition. Not merely states, but also human rights organisations have largely failed to voice a consistent critique of the allegations. When the United States and Sri Lankan governments accused ISIL (ISIS) in Mosul or the Tamil Tigers in the Safe Zones of using hundreds of thousands of people as human shields, for example, Amnesty International and Human Rights Watch did not dismiss or raise any significant doubts against such narratives.
4.5 million civiliansOnce the Russians saw that Western states and human rights organisations were not challenging their allegation that Ukrainians are using human shields, they seem to have decided to up the ante. On March 8, the Russian Defence Ministry accused the Ukrainian "militants" of holding "more than 4.5 million civilians hostage as a human shield." Basically, Moscow applied its legal argument to ten percent of the Ukrainian population, transforming millions of civilians into a potentially legitimate target.
This has dramatic consequences. As we have shown in a recent article in the context of the Sri Lankan civil war, prominent legal scholars and investigators have helped rationalise the killing of thousands of innocent people after they had been framed as human shields simply because they were located in proximity to the fighting. The former chief prosecutors in international war crime tribunals David Crane and Desmond de Silva - who provided their legal opinion to the Sri Lankan government's commission of investigation on the civil war - argued that killing 12 percent of a group being used as human shields constitutes proportionate killing. If one adopted the same calculations while accepting uncritically the Russian human shielding accusations, then half a million Ukrainian civilians could be killed without violating the law.
There has unfortunately been no real discussion of how, over the past decade, the human shield charge has been routinely used by Israel, Sri Lanka, Russia and other warring parties in numerous theatres of violence as a pre-emptive legal defence to justify the killing of civilians. In a similar vein, governments haven't said anything about this form of legal manipulation.
Decades of repetition, without any significant state or non-state challenge, nor any significant legal scholarship problematising the use of the human shielding accusation, have created a customary legal consensus whereby the human shields provisions can be used to justify the killing of civilians.
In order to contest the legal arguments that Russia invokes to justify the slaying of innocents, investigative agencies, humanitarian organisations, and human rights groups first need to confront the ease with which warring parties cast hundreds of thousands and at times even millions of civilians as human shields. They failed to do so in Mosul, Gaza, Aleppo, and Sana'a - perhaps in Kyiv they will finally debunk human shield accusations.
Neve Gordon is a Marie Curie Fellow and Professor of International Law at Queen Mary University of London.
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