JERUSALEM, Israel — Col. Richard Kemp, former commander of British forces in Afghanistan, told a legal conference that the Western media have encouraged terrorists to use human shields in war by focusing attention on civilian casualties in such a way that Western military forces were effectively deterred from responding to terrorist attacks. He suggested that legal doctrines might need to be adjusted in order to remove the operational advantage human shields provide terrorists.
The West’s collective failure to innovate to confront the tactical problems posed by human shields, Kemp said, “has had the effect of making them more effective, and encouraging their use.”
“I’m not in any way advocating the unlawful slaughter of civilians on the battlefield,” Kemp added. However, there needed to be creative legal and operational thinking about how to prevent civilians from being used, willingly or unwillingly, to help terrorists win asymmetric conflicts against superior military forces, he said.
For example, the doctrine of proportionality might need to be expanded to consider overall military objectives, not just short-term objectives of specific attacks, he suggested.
The problem with focusing on specific attacks is that the calculation–weighing the military objective against the risk to civilians–would often discourage attacks against terrorist targets, which in turn would ensure that terrorist groups would use human shields again in the future.
By considering the overall military objective, and the long-term goal of reducing terrorist threats to civilian life, certain operations might be allowed even if they meant “greater collateral damage,” he said.
Later in the day, Prof. Geoffrey Corn of the South Texas College of Law disagreed, saying that the international law was flexible enough as it is currently understood, and that it does not need to be changed. Rather, he said the problem was that the doctrine of proportionality had been distorted in public debate, and had become a way for critics to undermine military tactics. He said that lawyers had “hijacked” the original doctrine, which had been meant to prevent truly “excessive” force.
Corn suggested an alternative to measuring the “proportionality” of a military action by its results–namely, examining whether commanders in the field had gone through a “checklist” of questions about each attack they undertook, to ensure they had done the most possibility to “mitigate the risk to the civilian population.” That, he said, would limit the risk to civilians and also limit the legal risk for soldiers in the field, who were unrealistically expected to make perfect decisions.
Both were addressing an audience of hundreds of lawyers, scholars and activists at “Towards a New Law of War,” a two-day conference organized by Shurat HaDin, an organization that sues terror groups on behalf of victims and their families. Participants include past and present leaders of the U.S. and Israeli militaries; human rights activists; and international legal experts.
Shurat HaDin president Nitsana Darshan-Leitner said she hopes to make the conference an annual event.