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The Use of Human Shields Is a War Crime. America Must Hold Terrorists Accountable

Joe Biden
U.S. President Joe Biden attends the Quad leaders’ summit, in Tokyo, Japan, May 24, 2022. Yuichi Yamazaki/Pool via REUTERS

Palestinian Islamic Jihad (PIJ), the Gaza-based terrorist organization, repeatedly used civilians to shield its fighters and rockets from Israeli airstrikes during clashes earlier this month. The use of human shields is a war crime. It also triggers a law that Congress passed unanimously in 2018, authorizing the president to name — and impose sanctions on – terrorists who use human shields.  Yet neither Joe Biden nor Donald Trump has taken this important step to hold terrorists accountable.

PIJ is one of several terrorist groups that heavily uses human shields against Western militaries. Hamas and Hezbollah, which like PIJ are funded and armed by Iran, have regularly used human shields against Israel and are expected to again in future conflicts.  Meanwhile, the Islamic State and Taliban have in recent years persistently, and effectively, used human shields against U.S. and other NATO forces.

All of these groups engage in the actual war crime of using human shields to lay the groundwork for false accusations that the U.S., Israeli, and other Western militaries deliberately kill civilians.

NATO’s Supreme Allied Commander, U.S. Army General Curtis Scaparrotti, said in 2019 that NATO’s adversaries, especially in the Middle East, “have not hesitated to use the prohibited practice of human shields,” as doing so forces NATO troops “to choose between not taking action against legitimate military targets or seeing their actions, and the overall mission, delegitimized.”

PIJ’s use of human shields in Gaza this month killed numerous Palestinian children and other civilians. That is common. What is unusual is the video evidence demonstrating that PIJ caused these Palestinian deaths, undermining accusations that they were Israel’s fault. For example, during a live broadcast on August 7, Lebanon’s Mayadeen TV caught a PIJ rocket misfiring and coming down in a Gaza neighborhood.

The Associated Press noted that “live TV footage” showed PIJ rockets “falling short in densely packed residential neighborhoods,” and sent its reporters to visit the sites and analyze the death toll.  On August 8, AP announced that its reporting was “consistent with” an Israeli military assessment that of the 47 Palestinians killed during the August 5-7 fighting, some 12 of the 15 Palestinian children killed, and 16 of the total 27 Palestinian civilians killed, died as a direct result of those PIJ rockets.

Yet PIJ and its sympathizers, including UN Special Rapporteur Francesca Albanese, attempted to blame Israel for every one of these deaths.  For example, Albanese on August 12 claimed the Israeli military “clearly targets people indiscriminately, as the 46 people who lost their lives, 15 of whom are children, testify.”

Video footage also showed that Israeli forces were extraordinarily careful to avoid striking Palestinian civilians, several times postponing attacks on legitimate PIJ military targets until there were no children in the area.

PIJ’s use of human shields is clearly deliberate.  In an August 5 interview, the top PIJ leader, Ziyad Nakhalah, said that PIJ had no “red lines” as it pursued its objective that “the Zionist entity will be annihilated.”

PIJ has a long history of using human shields.  Its preeminent practitioner is Khaled al-Batsh, current head of the PIJ’s politburo, whose threats to bomb Israel helped precipitate the August 5-7 conflict.  Al-Batsh had previously founded and led the National Authority for Return Marches, which organized a 2018-2019 campaign that saw thousands of Gazans (including women and children) rioting at the border with Israel. Al-Batsh and his Hamas partners designed the marches to overwhelm Israel’s border defenses and thereby enable armed militants to enter the country. In doing so, they explicitly put children at risk.

After al-Batsh and his fellow organizers labeled a particular march as “Our Child Martyrs” day, a UN official warned that would “push boys and girls to put themselves at risk” and urged that children not be “exposed to the risk of violence.” Separately, al-Batsh inaugurated a children’s park which was located along the border for the explicit purpose of using children in the park as human shields. According to Talal Abu Zarifeh, al-Batsh’s subordinate, “the aim behind establishing the park is encouraging a human presence in border areas… [It is unlikely that Israel is] bold enough to shoot at people in the park.”

The administration and Congress should take several steps to more effectively counter the widespread use of human shields by PIJ and other terrorist organizations.

First, the administration should implement its legal authority to designate terrorists who use human shields. Despite strong evidence of human shields use by PIJ and other terrorists, and the requirements of U.S. law, neither Trump nor Biden has thus far imposed any human shields sanctions on anyone. Imposing sanctions on PIJ leaders for their use of human shields would be an important first step.

Meanwhile, Congress should reauthorize and enhance the existing sanctions law,which is set to expire on December 31, 2023.

In addition, the US, Israel, and other allies should work together, including with NATO, to press the UN and other international organizations to investigate, condemn, and encourage penalties for human shields use by terrorist organizations and their material supporters. For example, the UN human rights high commissioner and council should be encouraged to vigorously investigate, condemn, and encourage accountability for the use of human shields.

Finally, the militaries of Israel, the United States and other NATO members, and other allies must coordinate in sharing best practices for more effectively addressing the use of human shields by terrorist organizations.

A robust U.S. government response to the use of human shields by PIJ and other terrorist groups would concretely advance several American national security and foreign policy objectives. These objectives include protecting U.S. and other NATO troops against terrorist use of human shields; setting the record straight in the face of UN and other efforts to falsely accuse Israel of committing war crimes; and undermining PIJ, Hamas, and other terrorist groups while supporting Palestinians who are prepared to make peace with Israel.

Expert Biographies: Orde Kittrie, a senior fellow at the Foundation for Defense of Democracies (FDD) and law professor at Arizona State University, is a former U.S. State Department attorney. Follow him on Twitter @OrdeFKMatthew Zweig is a senior fellow at FDD. Follow him on Twitter @MatthewZweig1. FDD is a Washington, DC-based nonpartisan research institute focused on national security and foreign policy.

Orde Kittrie, a senior fellow at the Foundation for Defense of Democracies (FDD) and law professor at Arizona State University, is a former U.S. State Department attorney. Follow him on Twitter @OrdeFK. Matthew Zweig is a senior fellow at FDD. Follow him on Twitter @MatthewZweig1. FDD is a Washington, DC-based nonpartisan research institute focused on national security and foreign policy.

8 Comments

8 Comments

  1. cobo

    August 25, 2022 at 1:15 pm

    Get rid of the UN

  2. from Russia with love

    August 25, 2022 at 1:27 pm

    Wow! 😲 Is hiding behind civilians a war crime? 😲
    Tell me, will the United States, along with Palestinian terrorists who use civilians as human shields, also condemn Ukrainian terrorists? or will it continue to supply weapons to war criminals? Or does the US have “bad” terrorists and “good” terrorists? 😂 Does the US supply weapons to good terrorists and does not condemn them for such war crimes as using civilians as human shields? 😂
    God, what hypocritical freaks…

  3. Error403

    August 25, 2022 at 1:40 pm

    G – a – z – a ? ? ?

    That large open air prison located on the eastern edge of the mediterannean ?

    It’s a WAR CRIME committed by the west with the aim to maintain & strengthen the top western fortress beachhead in the arab world, along with the US bases at al-Tanq and al-Omar in syria.

    Hitler (the man behind the idea of holding fortress emplacements), if alive today, would be grinning with great delight at this great accomplishment.

    Gaza is a war crime committed by the west in broad daylight right under the noses of the arabs BUT yet nobody’s any the wiser.

  4. GhostTomahawk

    August 26, 2022 at 6:18 pm

    The US plays favorites. They’ll help one terrorist to hurt others. Human shields isn’t a new hussle. Pretending it’s a war crime is stupid. Our govt pontificating is on my last nerve.

    Want to look for war crimes? Take a look at our exfil out of Afghanistan. The world’s most powerful military tucked tail and bolted while leaving the innocent US civilians they spent 2 decades protecting stranded at the mercy of the local goat herding militia.

    WAR CRIME

  5. Smerch

    August 26, 2022 at 7:25 pm

    Lingering in Afghanistan was the mistake, not beating a hasty retreat. Raise your hand if you think the Afghan army would have been a valuable ally in an orderly withdrawal? Destroying critical military hardware was the only sane solution.

  6. Ezra Teter

    August 27, 2022 at 10:50 am

    The open-air prison camp that we call the Gaza Strip is one of the most densely populated places on the planet and Israel attacked it unprovoked with full knowledge of this fact. To say that Palestinians don’t have the same right to defend themselves that the Ukrainians do is just offensive. Biden is a vile, disgusting person for following this line of reasoning to justify the IDF’s killing of innocents.

  7. 5am

    August 27, 2022 at 12:05 pm

    First off, Israel has never launched an unprovoked attack on Gaza. Ever.
    Secondly, The real crimes against humanity being perpetrated in “da strip” are being committed by the bitter clingers in positions of Palestinian leadership.

  8. Greg Snow

    August 30, 2022 at 9:04 am

    child soldiers must also be included

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