Reading the news from Gaza, especially about the killing of innocent civilians and the charge that Israel is committing war crimes, I wanted to check the 1949 Geneva Conventions. It turns out, international law may not be so clear cut about civilian life. The relevant convention, which you can read here, is “Convention IV relative to the Protection of Civilian Persons in Time of War.” Balanced against the absolute moral enormity of human suffering, it’s language is conditioned and coldly antiseptic.
The parts that interest me concern the creation of protected civilian spaces, and the status of such safe zones during armed conflict. Earmarked for special attention in Convention 4 are hospitals, but they also include unspecified space zones, among which one might reasonably include schools and religious institutions, and camps for displaced persons run by international bodies such as UNRWA.
Convention IV is ambiguous. On the one hand, it asserts an absolute right to protection. On the other hand, it asserts that absolute right only under the condition that said safe zones for the protection of innocent civilians are not used for military purposes by the local governing authority that is party to the conflict.
Here are the articles and the parts of articles that caught my attention:
Art. 15. Any Party to the conflict may, either direct or through a neutral State or some humanitarian organization, propose to the adverse Party to establish, in the regions where fighting is taking place, neutralized zones intended to shelter from the effects of war the following persons, without distinction:
(a) wounded and sick combatants or non-combatants;
(b) civilian persons who take no part in hostilities, and who, while they reside in the zones, perform no work of a military character.
When the Parties concerned have agreed upon the geographical position, administration, food supply and supervision of the proposed neutralized zone, a written agreement shall be concluded and signed by the representatives of the Parties to the conflict. The agreement shall fix the beginning and the duration of the neutralization of the zone.
Art. 17. The Parties to the conflict shall endeavour to conclude local agreements for the removal from besieged or encircled areas, of wounded, sick, infirm, and aged persons, children and maternity cases, and for the passage of ministers of all religions, medical personnel and medical equipment on their way to such areas.
Art. 18. Civilian hospitals organized to give care to the wounded and sick, the infirm and maternity cases, may in no circumstances be the object of attack but shall at all times be respected and protected by the Parties to the conflict.
States which are Parties to a conflict shall provide all civilian hospitals with certificates showing that they are civilian hospitals and that the buildings which they occupy are not used for any purpose which would deprive these hospitals of protection in accordance with Article 19.
[…]In view of the dangers to which hospitals may be exposed by being close to military objectives, it is recommended that such hospitals be situated as far as possible from such objectives.
Art. 19. The protection to which civilian hospitals are entitled shall not cease unless they are used to commit, outside their humanitarian duties, acts harmful to the enemy. Protection may, however, cease only after due warning has been given, naming, in all appropriate cases, a reasonable time limit and after such warning has remained unheeded. […]
Art. 28. The presence of a protected person may not be used to render certain points or areas immune from military operations.
Annex I. Draft Agreement Relating to Hospital and Safety Zones and Localities
Art. 2. No persons residing, in whatever capacity, in a hospital and safety zone shall perform any work, either within or without the zone, directly connected with military operations or the production of war material.
Art. 4. Hospital and safety zones shall fulfil the following conditions:
(a) they shall comprise only a small part of the territory governed by the Power which has established them
(b) they shall be thinly populated in relation to the possibilities of accommodation
(c) they shall be far removed and free from all military objectives, or large industrial or administrative establishments
(d) they shall not be situated in areas which, according to every probability, may become important for the conduct of the war.
Art. 5. Hospital and safety zones shall be subject to the following obligations:
(a) the lines of communication and means of transport which they possess shall not be used for the transport of military personnel or material, even in transit
(b) they shall in no case be defended by military means.
As a reminder, the 4th Geneva Convention is also the relevant document according to which Israeli settlements in the occupied territories are considered illegal under international law, as interpreted almost universally. The relevant articles are these:
Art. 48. Protected persons who are not nationals of the Power whose territory is occupied, may avail themselves of the right to leave the territory subject to the provisions of Article 35, and decisions thereon shall be taken according to the procedure which the Occupying Power shall establish in accordance with the said Article.
Art. 49. Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.
Nevertheless, the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand. Such evacuations may not involve the displacement of protected persons outside the bounds of the occupied territory except when for material reasons it is impossible to avoid such displacement. Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have cease.
The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.
Re: human shields, a relevant and more recently document is rule 97 of the the Customary IHL (International Humanitarian Law), which you can read here. It’s definition of the practice is a broad one:
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. Most examples given in military manuals, or which have been the object of condemnations, have been cases where persons were actually taken to military objectives in order to shield those objectives from attacks. The military manuals of New Zealand and the United Kingdom give as examples the placing of persons in or next to ammunition trains. There were many condemnations of the threat by Iraq to round up and place prisoners of war and civilians in strategic sites and around military defence points. Other condemnations on the basis of this prohibition related to rounding up civilians and putting them in front of military units in the conflicts in the former Yugoslavia and Liberia.
In the Review of the Indictments in the Karadžić and Mladić case, the International Criminal Tribunal for the former Yugoslavia qualified physically securing or otherwise holding peacekeeping forces against their will at potential NATO air targets, including ammunition bunkers, a radar site and a communications centre, as using “human shields”.
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.
Finally, a word of caution re: the tension between “legality” and moral-political legitimacy. The correlation between the two is not a one-to-one correlation, as Lolita Brayman reminds in an article in +972, which you can read here:
International law and the media have a hard time distinguishing between legality and legitimacy. In a recent INSS report, Pnina Sharvit Baruch, a former legal advisor for the Israeli army, explained: “Issues touching on the legality of Israel’s actions are not synonymous with issues concerning the legitimacy of these actions in the international arena, and legal actions may still be deemed illegitimate.” The UNHRC commission is an example of this difference: Israel’s legitimacy was questioned, no actual judicial action was proscribed, and the very next day both sides violated international law, resulting in more casualties.