Jul 167 min read

A Legal Justification for Genocide

By expanding the human shielding charge to every inch of Gaza, Israel is using a familiar strategy at an unprecedented scale.

The destruction around al-Shifa Hospital following an Israeli besiegement, April 2nd. [Omar Ishaq/picture-alliance/dpa/AP Images]

ON OCTOBER 27TH, in advance of its first invasion of al-Shifa—the largest hospital in the Gaza Strip—the Israeli military released a clip of a three-dimensional model of the medical facility that purported to show how Hamas was using it as its “main headquarters,” with tunnels located directly underneath the medical wards ostensibly serving as a base for the group’s military operations. Following these allegations, which were continuously reiterated by Israel’s military spokesperson and parroted by international media, Israeli forces raided al-Shifa on November 15th. At the time when the soldiers entered the hospital, at least 650 patients and 7,000 displaced Palestinians were still on the premises, but Israel claimed that these people were “human shields” for Hamas; it then proceeded to attack the facility and those within it, damaging the surgical operation room building, blowing up a warehouse storing medicine and medical equipment, blindfolding and interrogating hundreds before taking them to “unknown areas,” and shooting at anyone who tried to flee. Following the attack, the Palestinian Ministry of Health said that 179 bodies were found inside the compound. Israel used similar justifications to besiege the hospital yet again in March, and by the end of that month, it had completely destroyed al-Shifa, transforming its grounds into a mass grave.

Over the past nine months, this pattern has been repeated hundreds of times, with Israel bombing and raiding Gaza’s hospitals, refugee camps, clinics, houses, apartment buildings, children’s pools, schools, universities, mosques, cemeteries, and agricultural lands, all of which it has claimed Hamas was using as a “human shield.” According to the laws of armed conflict, the warring party that uses human shields, rather than the party that kills them, tends to be guilty of a war crime. By casting all the protected sites and people it has bombed as “shields,” Israel thus seeks to shift the responsibility for its mass killings of civilians and sweeping destruction of civilian infrastructure onto Hamas—absolving itself of blame and legal accountability.

Israel is not alone in using the human shielding allegation to justify violence against civilians; this strategy has previously been seen in conflicts ranging from the Vietnam War to the war against ISIS. However, the intensity and scope of how Israel has mobilized the human shields accusation in the past year is unprecedented. Parties alleging the use of human shields have typically restricted the charge to limited territorial areas; in contrast, Israel has cited Hamas’s underground tunnel system to cast every square inch of Gaza as a human shield. This apparently endless multiplication of the human shielding accusation has functioned to erase the possibility of Palestinian civilianness altogether. Indeed, Israel’s ministry of foreign affairs has argued that “the mere fact that seeming ‘civilians’ or ‘civilian objects’ have been targeted” does not mean “that an attack was unlawful,” since these seeming civilians or civilian objects may actually have been human shields. The rationale here is that Palestinian homes are not homes, hospitals are not hospitals, mosques are not mosques, schools are not schools. They might “seem” to be, but they are not what they seem. Instead, each home is a suspected hideout, every hospital a likely arms depot, each mosque a tunnel pier, every school a rocket launch platform—and all legitimate targets for the cutting-edge weaponry that Israel receives from the United States, United Kingdom, Germany, France and Italy.

This deadly logic has already justified unprecedented carnage. Israel killed more civilians and destroyed more civilian infrastructure in the first three months of its campaign in Gaza than Asad’s regime did in Aleppo and Russian forces did in Ukraine over years. It has, proportionally speaking, wreaked more damage than the Allied bombing of Germany in World War II, destroying or damaging 70% of the Strip’s civilian infrastructure and rendering neighborhood after neighborhood uninhabitable. Furthermore, by deploying the shielding allegation at scale, Israel has created a way to use international humanitarian law—which is technically meant to regulate war and make it more humane—to the opposite effect, essentially carving out a legal justification for genocide.

HUMAN SHIELDING ACCUSATIONS have a long history. Ever since there have been rules against attacking civilians in war, there have been attempts—especially by colonial, imperial, and occupying powers—to evade these prohibitions by alleging that the enemy is using human shields. The laws of war have always included provisions that accommodate such charges. For instance, in 1907, Hague Regulations affirmed that hospitals as well as “places where the sick and wounded are collected” should be spared from sieges and bombardments. But the prohibition is immediately accompanied by an exception—hospitals will enjoy such protections “provided they are not being used at the time for military purposes”—and as early as 1911, this clause was used as a way to disregard the rule. That year, Italian pilots, who had been sent to the colony of Libya to quell a popular revolt, dropped bombs on medical facilities marked with the Red Crescent flag. The bombings generated criticism, including by the International Committee of the Red Cross, but the Italians were quick to declare that their attack was “authorized by international law” due to hospitals’ proximity to military targets, and the likelihood of such facilities “serv[ing] as a safeguard for the enemy.” The Italian military repeated this strategy during its 1935–1936 invasion and occupation of Ethiopia, when it systematically bombarded medical facilities operated by various Red Cross societies, claiming that the Ethiopians were using these field hospitals to shield combatants and military supplies. And the Italians were far from alone: Throughout the 20th century, the human shielding charge was used in places ranging from the Boer wars in South Africa to the Balkan wars to justify attacks on sites and people that, according to the laws of armed conflict, must be protected.

Initially, the scale of the human shielding allegation was limited, with warring parties charging that specific facilities, locations, or groups of people were being used as shields. But in the past two decades, we have witnessed a pivotal shift. In the 2008–2009 Sri Lankan Civil War, for instance, prominent legal scholars framed tens of thousands of civilians as human shields for the militant group Tamil Tigers in order to justify government forces’ lethal violence against them. During the 2016 war against ISIS in Mosul, Iraq, United Nations agencies and Amnesty International characterized 100,000 civilians trapped in close proximity to the fighting as human shields. And starting in 2022, Russian leaders have repeatedly justified the deaths of civilians in Ukraine by using the human shielding allegation. Russia’s Defense Ministry accused Ukrainian “militants” of holding “more than 4.5 million civilians hostage as human shields,” thus applying the shielding charge to a full 10% of Ukraine’s population and positioning them as “not immune from attack” under international law. These instances show that over time, civilians trapped in war zones have become more and more likely to be cast as shields, and increasingly likely to be stripped of certain legal protections as a result.

Israel’s ongoing war on Gaza has accelerated these dynamics. Because Hamas has built what are believed to be hundreds of miles of underground tunnels beneath Gaza as part of its guerrilla tactics, evading the eye of Israel’s high-tech surveillance apparatus, the Israeli legal team has invoked the laws of armed conflict to claim that all civilian objects—and every civilian—situated on Gaza’s land surface are potential human shields, and thus not immune from attack. The unprecedented nature of this shielding charge would appear to strain credulity; indeed, Western powers have never accepted similar claims advanced by Russia. However, as a US ally fighting non-white, non-state actors, Israel has found Western politicians and international press very amenable to the narrative that “savage” Palestinian militants are using their own people as fodder. Recently, for instance, Israel killed almost 100 civilians in a single attack purportedly targeting Hamas’s military chief Mohammed Deif. The bombing took place in a zone that Israel itself had designated as a “humanitarian area”; however, the military still portrayed the strike as a legitimate attack against “terrorists hiding among civilians,” and Western media outlets did not hesitate to follow suit in describing the strike as one against Deif rather than displaced Palestinians.

Israel’s unprecedented broadening of the human shielding charge has been facilitated by its legal teams’ decades of experience in interpreting international law as if the exceptions were the rule. As recently as Israel’s 2021 and 2022 Gaza campaigns, the military invoked the human shielding accusation to legitimize airstrikes against civilians, duplicitously invoking international law to justify illegal attacks. Now, the same logic is being applied as justification for genocidal violence, including mass expulsions and killings. One week after its war on Gaza began, Israel ordered 1.1 million Palestinians in northern Gaza—about half of the enclave’s population—to leave their homes. According to international humanitarian law, parties to an armed conflict may not deport or forcibly transfer the civilian population of an occupied territory unless “the security of the civilians involved or imperative military reasons so demand.” In this case, Israel claimed that it was removing Palestinian civilians from their homes as a precaution that would protect them from the epicenter of violence, but in effect Israel transformed this humanitarian norm into a tool of mass expulsion. It has also used a similar strategy to undermine the legal protections of Palestinians in northern Gaza who have been unable or unwilling to leave their homes. Israel is legally required to treat such people, who numbered in the hundreds of thousands in October, as protected civilians. But since it had dropped leaflets instructing people to evacuate, Israel claimed that it could designate all of northern Gaza as a legitimate military target, and that the Palestinian civilians who remained were putting themselves in the line of fire. When Israel launched its attack on the area a few days later, killing thousands of civilians, the military cast the civilians who remained in the north as either terrorist accomplices or human shields.

Tellingly, Israel’s legal defense at the International Court of Justice has put the idea of human shields front and center. In his opening statement, the attorney representing Israel noted that Gaza’s civilian infrastructure is actually “the most sophisticated terrorist stronghold in the history of urban warfare,” and arguing that Hamas, not Israel, was responsible for the destruction of Gaza. The Israeli legal team returned to these arguments again and again, representing the first time in history that human shielding, under the auspices of international law, has been used to carve out a justification for a colonial war of annihilation. Indeed, the moment Israel invokes international law to frame everything above ground in Gaza as a potential shield, it operationalizes the law itself as a tool legitimizing genocide. It’s hard to overstate the frightening consequences of this maneuver. If the international legal apparatus can be used to justify acts that can destroy a people, “in whole or in part,” then the rules-based order created in the aftermath of World War II to regulate war according to humanitarian principles becomes a tool for its own undoing.