The civilian death rate from the United States-backed Israeli assault on the Gaza Strip is the highest of any conflict since the 1994 Rwanda genocide. Rather than demand an immediate and permanent ceasefire and the withdrawal of Israeli occupation forces from Gaza in return for the release of Israeli hostages, President Joe Biden has vetoed multiple United Nations Security Council resolutions, rejected calls by progressive members of Congress to condition military aid, and used emergency powers to bypass public and congressional oversight to send additional bombs and missiles.
His more recent calls for a “ceasefire” appear to seek a temporary pause in the fighting, which would allow Israel to resume the carnage after a few weeks.
Unable to deny the horrendous human death toll, the Biden administration and many of its supporters have insisted that the responsibility for Israel’s mass killing actually belongs to Hamas for their alleged use of human shields, defined under international law as “Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operation.”
However, there is little evidence that Hamas is actually doing this.
Hamas has certainly not done enough to reduce civilian casualties; Amnesty International notes that it has sometimes positioned fighters and armaments too close to concentrations of civilians. However, this is not the same thing as deliberately using civilians as protection against enemy fire, which is a far more serious offense and recognized as a crime against humanity. Ukraine has also been found to have positioned fighters and armaments too close to civilians, but the Biden administration has neither accused the state of using human shields nor used that to defend Russia’s bombing of civilian areas.
U.S. officials claimed Hamas was using human shields in previous conflicts, particularly during the 2009 and 2014 wars. Both houses of Congress, by overwhelming bipartisan majorities, passed resolutions insisting — without evidence — that Hamas used human shields. The language in the resolutions rationalizing Israeli war crimes bore remarkable similarities to those put forward by apologists for the the Bashar al-Assad regime’s attacks on Syrian cities in the name of self-defense against Islamist terrorists whom the Syrian government similarly accused of using human shields.
However, investigations from previous wars between Israel and Hamas by Human Rights Watch, Amnesty International, the UN Human Rights Council, and others — while finding Hamas guilty of a number of other war crimes — failed to find a single documented case of any civilian deaths caused by Hamas using human shields. For example, Amnesty International, following an extensive investigation after the 2014 war, found no evidence that “Palestinian civilians have been intentionally used by Hamas or Palestinian armed groups during the current hostilities to ‘shield’ specific locations or military personnel or equipment from Israeli attacks.” By contrast, human rights investigators found that advancing Israeli soldiers had illegally used Palestinian civilians as human shields. No criticism of such crimes by either the U.S. administration or Congress were forthcoming, however.
In response, another House resolution adopted by an overwhelming bipartisan majority condemned such investigations because they allegedly “repeatedly downplayed or cast doubt upon” claims that Hamas used “human shields” despite a supposed “great body of evidence” — though there was no reference in the resolution of any such evidence.
Once again, the Biden administration and congressional leaders are repeating the line that the high civilian death toll in the current fighting is a result of Hamas using human shields, and facing virtually no pushback from the media.
From the outset of Israel’s bombing of Gaza in October, President Biden claimed in a nationally televised speech, without evidence, that, “Hamas uses Palestinian civilians as human shields, and innocent Palestinian families are suffering greatly because of them.” Senate Majority Leader Mitch McConnell (R-Kentucky) insists that reports of Israeli war crimes coming out of Gaza should not be believed because no one should trust “a terrorist organization that uses civilians as human shields.” Sen. Ben Cardin (D-Maryland), chair of the Senate Foreign Relations Committee, also put the blame for civilian casualties solely on Hamas, claiming “the terrorists have been using Palestinians as human shields for nearly two decades.”
Why do such unproven allegations remain unchallenged?
The use of the term “human shields” makes it possible for people in the U.S. to believe that the staggering civilian death toll is not only justifiable but unavoidable. How do Israeli and U.S. leaders get away with this?
One reason is that no one wants to be seen as “defending Hamas,” which has engaged in other serious and well-documented war crimes, including crimes against humanity, as dramatically demonstrated during the October 7 attacks inside Israel. Furthermore, Hamas is arguably using the Israeli hostages they kidnapped as human shields, though there is no evidence that it has had any deterrent effect on Israeli bombing. Further, despite any clear evidence so far, it cannot be ruled out that perhaps they really are using Palestinians as human shields this time, so no one wants to stick their neck out categorically denying it — though if it really was to make Hamas “immune from military operation,” it clearly has failed.
There is also the additional factor that such allegations serve the purposes of the far right Israeli government to largely destroy the Gaza Strip and possibly even engage in ethnic cleansing. The primary reason that so many in government, the media and elsewhere have been making such claims is that the U.S. government has redefined “human shields” well beyond the international legal definition. Indeed, it has become so broad that it seems to have been designed to designate the entire Gaza Strip as a free-fire zone.
In 2009, the U.S. House of Representatives passed a resolution by an overwhelming bipartisan margin defining human shields as cases in which Hamas is “embedding its fighters, leaders, and weapons in private homes, schools, mosques, [and] hospitals.” However, having a Hamas leader living in his own apartment with his family, attending a neighborhood mosque, and going to a local hospital does not constitute “embedding” for the purpose of “using Palestinians as human shields” as the resolution claimed. Indeed, the majority of leaders of most governments and political movements have their own private homes in residential areas, attend nearby houses of worship, and are treated in area hospitals when sick or injured, along with ordinary civilians.
A Hamas official living with his family in an apartment building is not a case of using “human shields,” as the U.S. claims, nor does it give Israel the right to blow up the entire building, as it has done in such circumstances multiple times since the outbreak of fighting five months ago.
In addition, Hamas’s armed wing is a militia, not a standing army. As a result, virtually all of its fighters also live in private homes and go to neighborhood mosques and local hospitals.
Furthermore, Hamas is not just its armed wing, but the governing body of the Gaza Strip and its more than 2 million residents. By Israel’s definition, the civilian police force, those employed by various ministries and other such “Hamas officials” are legitimate targets.
As a result, this resolution — primarily drafted by then-House Speaker Nancy Pelosi — puts the U.S. government on record advancing a dangerous reinterpretation of international humanitarian law that would allow virtually any country with superior air power or long-range artillery to get away with large-scale attacks on residential neighborhoods, hospitals, and more. We are seeing the result of this reinterpretation in the U.S. defense of Israeli war crimes today.
Biden has expanded the definition even further, saying that simply the presence of Hamas in the Gaza Strip is responsible not only for the bombing, but for the Israeli blockade and resulting starvation of Palestinians. Addressing a Human Rights Campaign dinner in Washington, he said, “The humanitarian crisis in Gaza — innocent Palestinian families and the vast majority that have nothing to do with Hamas — they’re being used as human shields.”
What is generally missing in this debate is, regardless of how “human shields” is defined, it is still illegal to kill civilians. Protocol I of the Fourth Geneva Convention states that even if an armed group is shielding itself behind civilians, such a violation “shall not release the Parties to the conflict from their legal obligations with respect to the civilian population and civilians.”
This principle is widely accepted in domestic law. For example, if in the course of an armed robbery at a bank or other business, the robbers were holding employees and customers hostage and firing at police and others from inside the building, the SWAT team could not get away with killing the hostages along with their captors and simply blame it on the criminals for using human shields. Similarly, in the pursuit of a school shooter, it would be unthinkable for authorities to bomb the school.
The ramifications of U.S. policy goes beyond Israel and Gaza. It has been used by U.S. officials to justify Israel’s bombing of civilians in Lebanon, even though there appeared to be little evidence that Hezbollah has used human shields either. The claim of the use of human shields by Islamist movements has also been used by U.S. officials to justify Saudi bombing of civilians in Yemen and the high civilian death toll from the U.S. bombing of ISIS-held cities in Iraq and Syria which killed many thousands of civilians (though charges of human shields in those cases appear to have had more validity.)
Should this bipartisan policy of justifying staggering civilian death tolls on the grounds that Hamas is using human shields remain unchallenged, it will only make it possible for Washington to aid and abet even greater war crimes in the future.
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Stephen Zunes, a professor of Politics at the University of San Francisco, is currently the Torgny Segerstedt Visiting Research professor at the Gothenburg University in Sweden.
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