US law requires Biden to impose sanctions on Hamas for using human shields

President Joe Biden has repeatedly, and rightly, condemned Hamas in recent days for using civilians as human shields. 

A U.S. federal law therefore now requires the president to turn his rhetoric into action and hold accountable all complicit Hamas leaders, operatives, and material supporters.

By following the law and sanctioning all involved with the group’s use of human shields, Biden will send an important message not only to Hamas but also to Hezbollah, the Taliban, the Islamic State, Russia, and others who use human shields against Western militaries.

The “Sanctioning the Use of Civilians as Defenseless Shields Act” passed both houses of Congress unanimously in 2018. The Shields Act, as it is known, specifically requires the president to submit to Congress a list of persons he determines to be involved in the use of human shields by Hamas or Hezbollah, and also for him to impose sanctions on them. 

The requirements for the listing and for the sanctions also apply to all foreign persons, agencies, or instrumentalities whom “the president determines” knowingly and materially support or direct the use of human shields by those groups.

For many years, Hamas has engaged in the war crime of using civilians to shield its fighters and weapons from lawful attack. This time, Hamas is illegally using both Palestinian and Israeli civilians as human shields.

Biden declared in an Oct. 10 speech that Hamas “use Palestinian civilians as human shields.”  In an Oct. 15 speech, Biden indicated that innocent civilians are “being used as human shields” by Hamas. In an Oct. 15 interview with 60 Minutes, Biden stated that Hamas are “hiding behind the civilians,” including by placing their “headquarters where civilians are.”

Hamas uses human shields clearly and openly. The terrorist group has ordered northern Gaza residents to ignore an Israeli military warning to “evacuate south for your own safety and the safety of your families, and distance yourself from Hamas terrorists who are using you as human shields.”

Eyad al-Bozom, a Hamas spokesman, said at an Oct. 13 news conference, “We tell the people of northern Gaza and from Gaza City, stay put in your homes, and your places.”  John Kirby, the U.S. National Security Council spokesman, correctly responded, “the Hamas counterorder telling Palestinians in Gaza to stay at home” means Hamas is using these civilians as “human shields.”

Al-Bozom held his news conference at Shifa Hospital in Gaza City, literally using the hospital’s patients as human shields to protect his call for other Gaza civilians to remain as human shields.  Hamas has a long history of using Shifa Hospital as a military headquarters, in yet another violation of the prohibition on using human shields.

During the current conflict, Hamas is also using American and Israeli hostages as human shields.  The hostages include women, children and elderly persons.

Abu Obeida, another Hamas spokesman, said that Hamas would kill the civilian hostages it seized from Israel, and broadcast their executions “in audio and video,” if Israel attacks Gaza homes “without warning.”  On Oct. 10, Ismail Haniyeh, the Hamas leader, declared that his terrorist group would refuse to release any of the hostages “until the end” of his group’s war with Israel. This clearly violates the prohibition on using civilians to shield fighters and weapons from lawful attack.

The use of human shields creates a win-win situation for Hamas. If Israel holds back, Hamas gains on the battlefield in Gaza. If Israel attacks and inadvertently harms civilians, Hamas broadcasts the images far and wide while falsely claiming that Israel uses force indiscriminately and is to blame for the casualties.

In other words, Hamas engages in the actual war crime of using human shields in order to facilitate false accusations that Israel is committing war crimes such as the willful killing of civilians. 

By imposing Shields Act sanctions against specific Hamas officials, the U.S. can help educate the Western media and public about Hamas’s use of human shields and underscore that it is a war crime under international law. 

War crimes sanctions against Haniyeh, al-Bozom, and other relevant Hamas leaders would also help counter the flawed view, particularly prevalent in Europe, that Hamas’s political leaders are separate from the group’s military wing and somehow less involved in objectionable activity. 

Despite strong evidence that Hamas and Hezbollah have used human shields extensively in prior conflicts, the U.S. government has yet to impose the sanctions required by this U.S. law under such circumstances. 

Biden should seize this opportunity to do so now, both to support America’s Israeli allies and to bolster U.S. and NATO troops. The rampant use of human shields by NATO adversaries has led the alliance’s Supreme Allied Commander Europe to urge all NATO member states to impose sanctions and take other measures to counter the use of human shields.

Although the U.S. does currently label Hamas leaders as terrorists, their additional designation as war criminals will carry more stigma in countries where many still subscribe to the unfortunate old adage that “one man’s terrorist is another man’s freedom fighter.” 

In contrast, failure to spotlight, condemn, and sanction specific Hamas officials for their involvement in using human shields would send a message to the leaders of Hamas, Hezbollah, the Taliban, the Islamic State, Russia, and other prolific users of human shields that the benefits of doing so continue to outweigh the costs. 

The Shields Act, which is currently due to expire on Dec. 31, should be both strengthened and extended. Reps. Mike Gallagher (R-Wisc.) and Brad Sherman (D-Calif.) recently introduced a bill to do exactly that. In the meantime, Biden should move swiftly to impose the sanctions already required by his determination that Hamas is using human shields.

Orde F. Kittrie is a senior fellow at the Foundation for Defense of Democracies and a law professor at Arizona State University. He previously served for over a decade in legal and policy positions at the U.S. State Department.