Jordan’s Queen Rania appeared on CNN and had the following comments (see the text of her comments and/or the video, posted below; with these specific comments starting at about the 5:00 minute mark of the video):
“These evacuation orders, I do not believe are for the benefit of the Gaza civiliians. They are not the target audience; the rest of the world is. It is Israel’s attempt to try to legitimize their actions.”
“And when it comes to human shields, I think we need to defer to international law. Of course, the use of human shields is criminal. But even if one side uses … puts a civilian in harms way, that civilian is still entitled to full protection under international humanitarian law. That is the global standard and no nation is exempt. So before firing any bullet, before dropping any bomb, it is the responsibility of the nation to weigh the risk to civilian life, and if that risk is disproportionate to the military target then it is deemed unlawful. And frankly, I find it really outrageous when Israeli officials audaciously dismiss Palestinian casualties as human shields. In a place like Jabalia, which is one of the most crowded corners of Gaza; Gaza being one of the most densely populated spots on Earth … civilian death is not is not incidental, it is not accidental. It is a foregone conclusion, and that makes it a war crime.
Comments by Queen Rania of Jordan during interview with CNN’s Becky Anderson; posted to Twitter / “X” on November 5, 2023; see @BeckyCNN (these specific remarks start at about the 5:00 minute mark of the video).
Not surprisingly, Queen Rania reaches a conclusion that is 100% incorrect.
First, she is apparently assuming that Israel has made no proportionality assessment (“… before firing any bullet, before dropping any bomb, it is the responsibility of the nation to weigh the risk to civilian life, and if that risk is disproportionate to the military target then it is deemed unlawful.”). I mean, she is correct in that an assessment needs to be made, and if the risk/harm is disproportionate, it would be unlawful; but she clearly assumes that no assessment has been made.
Second, she states that “… I find it really outrageous when Israeli officials audaciously dismiss Palestinian casualties as human shields.”
Of course, the obvious question (or retort) is: “But, what if the casualties really were human shields? And what if the harm to the human shields / civilians was not disproportionate to the lawful military objective gained?”
What her statement makes clear is that she doesn’t like it when Israel targets a military objective and ends up harming civilians in the process (due to the fact that Hamas is violating IHL by using human shields), and after the fact, Israel points out that the civilians would not have been harmed if they were not used as human shields by Hamas.
In fact, it appears as if it is not the use of human shields that truly bothers her; it is instead the fact that Israel didn’t simply allow Hamas’ illegal use of human shields to deter any and all attacks. Or, stated otherwise, she is upset that Hamas’ tactic didn’t work.
Third, she stated that: “… when it comes to human shields, I think we need to defer to international law. Of course, the use of human shields is criminal.”
While I personally think that this is a great idea; I am curious as to why she didn’t discuss Hamas’ criminal liability in using human shields.
Fourth, she goes on to say that: “… [b]ut even if one side … puts a civilian in harms way, that civilian is still entitled to full protection under international humanitarian law.”
Here is where things start to go a little sideways. I mean, her statement is not incorrect (but it is overly simplistic and doesn’t take other aspects of IHL into consideration). She apparently assumes, and wants others to believe, that this protection for civilians means that the side using a civilian as a human shield cannot be attacked. In other words, she apparently thinks that the use of human shields acts as a real shield from attack and/or criminal responsibility. In this, she is absolutely incorrect.
Unfortunately, the use of human shields can be beneficial to a group like Hamas; as in certain cases the use of human shields could prohibit an attack by Israel if the attack is expected to result in disproportionate harm to civilians. However, whether or not the attack is disproportionate (and/or legal), the use of human shields by Hamas is criminal in nature and there is no balancing-test of a city’s population or density that must be considered before such actions are deemed illegal.
Further, from a practical standpoint, if the law regarding the use of human shields simply prevented Israel from being able to attack Hamas, then the law would actually encourage groups like Hamas to continue using human shields (as any attack against them, while human shields were in place, would be illegal). This is not, and cannot be, the standard.
In a recent article, Michael Schmitt explained the following (emphasis added):
Impact of Human Shielding on the Enemy
Article 51(8) of Additional Protocol I provides that a violation by the enemy of the human shielding prohibition does not release the attacker from its “legal obligations with respect to the civilian population and civilians, including the obligation to take precautionary measures provided for in Article 57.” This means that the human shields continue to factor fully into proportionality calculations and that the attacker must do everything feasible in the circumstances to avoid harming them (so-called active precautions). For instance, an attacker must consider alternative tactics, weapons, and targets that would yield a similar effect on the enemy while placing the shields at less risk of harm.
“Israel – Hamas 2023 Symposium – What is and is not human shielding?,” by Michael Schmitt, posted on November 3, 2023; at the Articles of War / Lieber Institute at West Point, found here: https://lieber.westpoint.edu/what-is-and-is-not-human-shielding/
However, do not be confused. This does not mean that the attacker must find an alternative tactic (and/or that the attack cannot be made). It only means that the attacker must make an assessment, consider alternatives, and then act accordingly. If there is no alternative that would yield a similar effect, and the risk of harm (or amount of harm) is not considered disproportionate to the lawful military advantage gained, then the attack is arguably lawful despite the fact that the enemy is using human shields.
Continuing the quote from above, Michael Schmitt goes on to write that (emphasis added):
I believe this provision reflects customary law (see also ILA Study Group Report, p. 360). However, this view is not universal. In particular, the UK Manual on the Law of Armed Conflict asserts, “Even where human shields are being used, the proportionality rule must be considered. However, if the defenders put civilians or civilian objects at risk by placing military objectives in their midst or by placing civilians in or near military objectives, this is a factor to be taken into account in favour of the attackers in considering the legality of attacks on those objectives” (§ 2.7.2). As Yoram Dinstein explains, “the general practice of States has traditionally stamped with approval the approach that, should civilian casualties ensue from an illegal attempt to shield combatants or a military objective, the ultimate responsibility lies with the Belligerent Party putting the civilians at risk” (p. 211-12). Notably, he does not suggest that the human shields should be disregarded altogether but instead that their inclusion in the proportionality calculation can take account of the enemy’s unlawful conduct.
Of course, from a practical perspective, a party violating LOAC by using shields can effectively bar its enemy from attack if there are enough human shields to render the attack “excessive” under the rule of proportionality. But in my view, a malevolent party to the conflict should not be able to deprive civilians of the protections they enjoy from attack. Such an interpretation appears to skew the military necessity-humanitarian considerations balance of LOAC too far in the direction of the former.
“Israel – Hamas 2023 Symposium – What is and is not human shielding?,” by Michael Schmitt, posted on November 3, 2023; at the Articles of War / Lieber Institute at West Point, found here: https://lieber.westpoint.edu/what-is-and-is-not-human-shielding/
Finally, her last comment (as quoted) is that: “In a place like Jabalia, which is one of the most crowded corners of Gaza; Gaza being one of the most densely populated spots on Earth … civilian death is not is not incidental, it is not accidental. It is a foregone conclusion, and that makes it a war crime.”
This kind of statement and conclusion is exactly why politicians and/or diplomats should not be giving (or explaining) IHL legal advice. As it is far to obvious that, in this particular case, the law is simply not properly understood (or maybe it is, but it is being manipulated to fit a narrative). In any event, it is incorrect.
While one area that is more populated with civilians than another will definitely change the proportionality analysis of an attacker, it does not inherently make any attack unlawful. If it did, Hamas would be incentivized to simply hide behind enough civilians (putting them all in harms way) while making any/every attack from Israel illegal. Logically speaking, this is exactly why such a tactic is not allowed (and thus, it is why an attack that unfortunately kills human shields is not per se unlawful).
Additionally, as I stated before, just because an area is more densely populated than another doesn’t mean civilian deaths are not incidental. If anything, the deaths are 100% incidental, in that the target itself was a lawful military object while the civilians were human shields that Hamas was hiding behind. That is the definition of incidential.
As for “accidental,” no one said the deaths were an accident. If anything, the deaths were actually calculated into the analysis and they were unfortunately expected to occur.
Finally, as for the deaths being a foregone conclusion … that is not what makes it a “war crime.” In fact, when the proportionality assessment was completed, the attackers knew that the civilian deaths were a foregone conclusion and that they were going to occur. I understand that Queen Rania wants the attack by Israel, and the ensuing civilian deaths, to qualify as a war crime but that doesn’t mean it will.
On the other hand, there is no question that Hamas’ engagement in hostilities with Israel, their attacks on civilians on October 7, and their use of human shields during the hostilities, are all criminal acts from which liability should not be excused.
The Law of Armed Conflict (LOAC) 