Since the beginning of the Russian invasion at the end of February 2022, universities, schools, theaters, hospitals and many other civilian sites in Ukraine have been destroyed by Russian shelling and more than four million people have so far fled the country. Faced with the devastating consequences of its actions, Russia is increasingly falling back on a single legal justification: human shields. Indeed, Moscow has repeatedly suggested that the Ukrainian military deliberately uses civilians as a screen to defend legitimate military targets.
On February 25, just hours after the start of the invasion, Russian President Vladimir Putin issued a direct appeal to the personnel of the Ukrainian Armed Forces: “Don’t let the neo-Nazis and [Ukrainian right-wing radical nationalists] use your children, wives and elders as human shields.
Echoing its leader, Major General Igor Konashenkov, spokesman for the Russian Defense Ministry, declared at a press conference on February 28 that “the armed forces of the Russian Federation strike only at military targets”. Referring to the capital, kyiv, he added that “the leaders of Ukraine and the city authorities, after announcing a curfew, are persuading the inhabitants of the capital to stay at home”. This, he concluded, “proves once again that the kyiv regime is using the city’s residents as a ‘human shield’ for nationalists who have deployed artillery units and military equipment in residential areas. of the capital”.
Then, on March 3, Moscow accused Ukrainian authorities of detaining a group of 6,000 Indian students and other foreign nationals as “human shields.” Indian authorities themselves have denied the allegation. Days later, Putin said “neo-Nazis” were obstructing the creation of humanitarian corridors requested by the Ukrainian government to evacuate trapped civilians, saying “militants” were guarding potential evacuees as human shields. .
The charge of protection
Russia has repeated similar claims in diplomatic arenas such as the United Nations Security Council. Also on social media, Russian diplomats have tried to shape perceptions of the battlefield, describing the Ukrainian resistance as guilty of war crimes by insisting that it used “human shields”.
So, alongside the war on the ground, we are witnessing an intense information war which, as the Russian ambassador to the UN has stated, appears to be a vital part of the Russian “special operation”.
The human shield charge has in fact become an increasingly common defense when states act immorally. As we show in our recent book on human shields, Saudi Arabia, Syria, Israel, Sri Lanka and India are just some of the states that have deployed the argument to justify the high number of civilian casualties in recent years.
That’s partly because legally it seems like such a useful exit clause. The legal provision of international law relating to human shields states that “the presence or movements of the civilian population or of individual civilians shall not be used to render certain points or areas immune from military operations, in particular to attempt to protect military objectives against attack or to protect, promote or impede military operations”.
Under international law, the use of human shields constitutes a war crime, while the party responsible for the death of human shields is not the one who kills them – if the attack is proportionate – but rather the one who deploys them. . Indeed, on 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 may legitimately strike “a military target which uses human shields” – although HRW also notes that “it only protects when there is a specific intent to use civilians to deter an attack”.
So, by accusing Ukraine of using human shields, Russia is in effect asserting that it is not legally responsible for the civilians it kills. And while Russia may be losing the information war, the legal Trojan horse of its aggression – the human protection charge – is yet to receive significant opposition. Not only states, but also human rights organizations have largely failed to voice coherent criticism of the allegations. When the governments of the United States and Sri Lanka accused ISIL (ISIS) in Mosul or the Tamil Tigers in the safe areas of using hundreds of thousands of people as human shields, for example, Amnesty International and Human Rights Watch have neither rejected nor raised significant doubts against such accounts.
4.5 million civilians
Once the Russians saw that Western states and human rights organizations did not dispute their allegation that the Ukrainians were using human shields, they seem to have decided to raise the bar. On March 8, the Russian Ministry of Defense accused Ukrainian “militants” of holding “more than 4.5 million civilians hostage as a human shield”. Basically, Moscow applied its legal argument to 10% of Ukraine’s population, turning millions of civilians into a potentially legitimate target.
This has dramatic consequences. As we showed in a recent article in the context of Sri Lanka’s civil war, prominent jurists and investigators helped rationalize the killing of thousands of innocent people after they were portrayed as merely human shields. because they were close to the fight. Former chief prosecutors of the international war crimes tribunals David Crane and Desmond de Silva – who provided their legal advice to the Sri Lankan government’s commission of inquiry into the civil war – argued that killing 12% of a group used as human shields constitutes a proportionate measure of murder. If one adopted the same calculations while accepting without reservation the Russian accusations of human protection, then half a million Ukrainian civilians could be killed without breaking the law.
Unfortunately, there has 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 many numerous theaters of violence as a preventive legal defense to justify the killing of civilians. . Similarly, governments have said nothing about this form of legal manipulation.
Decades of repetition, without any significant state or non-state challenge, or significant legal study problematizing the use of the human protection charge, have created a customary legal consensus that human shield provisions can be used to justify the killing of civilians.
In order to challenge the legal arguments Russia uses to justify killing innocent people, investigative agencies, humanitarian organizations and human rights groups must first confront the ease with which warring parties regard hundreds of thousands, if not millions, of civilians as human beings. Shields. They didn’t in Mosul, Gaza, Aleppo and Sanaa – maybe in Kyiv they will finally debunk the human shield accusations.
The opinions expressed in this article are those of the authors and do not necessarily reflect the editorial position of Al Jazeera.