How Congress can fight Hamas’s use of human shields

A ceasefire has halted for now the Hamas rocket attacks on Israeli civilians. But the conflict continues, including through campaigns at the United Nations and in the media to attribute victory and apportion blame.  

During the May 2021 conflict, Hamas reportedly used civilians as human shields to protect its military assets from Israeli counterstrikes. For example, Hamas reportedly located military tunnels under a school and adjacent to a kindergarten, a mosque, and a hospital. It reportedly placed weapons stockpiles in several different houses and apartment buildings, situated pivotal intelligence research and operations facilities in the same building as the Associated Press and other foreign journalists, and installed its military intelligence headquarters next to a kindergarten. Hamas also reportedly used civilian apartment buildings for military planning and operations, positioned rocket launch sites next to civilian buildings, and situated weapons factories in the heart of densely populated civilian areas. 

Following the ceasefire, a resolution, passed by the UN Human Rights Council (UNHRC), established a one-sided commission of inquiry designed to whitewash the use of human shields and otherwise portray the conflict’s tragic loss of life as entirely Israel’s fault. The Trump administration had withdrawn from the UNHRC in 2018, accusing the forum of having a “chronic anti-Israel bias.” But the Biden administration announced in February that it would “re-engage immediately and robustly” with the Council, explaining that a “vacuum of U.S. leadership” did “nothing” to reform the UNHRC’s “disproportionate focus on Israel.”

The U.S. was not one of the over 50 UN member states that spoke at the May 27 UNHRC meeting that created the commission of inquiry. Afterwards, U.S. diplomats slammed the UNHRC decision as a “deeply unfortunate … distraction that adds nothing to ongoing diplomatic and humanitarian efforts.” The resolution creating the commission strongly implies that only Israel is to blame for harm done during the Gaza conflict. It does not even mention Hamas, let alone its rocket attacks on Israeli civilians and use of Gaza civilians as human shields. Congress can — and should — help set the record straight.

Some of America’s adversaries, including the Islamic State and Taliban, also rely on the use of human shields. U.S. law requires the president to hold Hamas and Hezbollah accountable for human shields use, which violates international laws of armed conflict including the Geneva Conventions. Now is the time for the president to implement — and for Congress to expand — that law.

Congress led efforts to counter human shields use when it unanimously passed the Sanctioning the Use of Civilians as Defenseless Shields Act (Shields Act), which was enacted on Dec. 21, 2018. This landmark legislation requires the president to submit to Congress a list of foreign persons involved in the use of human shields by Hamas or Hezbollah. It also requires the president to impose sanctions on all listed persons.

The Shields Act required the president to submit his list not later than one year after the date of enactment, and annually thereafter. The law requires the list to cover all violations that happened after enactment.

Yet, two and a half years since the Shields Act became law, there has not been a single sanctions designation using the authorities provided for in this Act. Despite considerable evidence of human shields use by both Hamas and Hezbollah, the Trump administration did not fulfill its statutory obligation, and the Biden administration has not yet done so. 

Congress should also strengthen and expand the Shields Act. Currently, the law only mandates sanctions after a person involved in human shields use has been listed in the required annual report. Rather than waiting for a yearly report, Congress could revise the law to require the administration to designate additional individuals, entities, or agencies of foreign states whenever they undertake proscribed activities. 

Second, Congress should expand the scope of the Shields Act so it does not just require sanctions in response to human shields use by specific members of Hamas and Hezbollah; rather, the law should apply to human shields use by all terrorist and non-state organizations — including the Taliban, ISIS, and the Houthis — and authorize sanctions on the organization as a whole as well as on specific culpable members.     

Third, when expanding the scope of the sanctions, Congress could also add sanctions for perpetrators of two other war crimes in which terrorists frequently engage during conflicts with the U.S., Israeli, and other western militaries: the deliberate use of specially protected property (e.g. hospitals and religious institutions) to shield military assets, and the deliberate targeting of civilians.

Fourth, the Congress can direct DOD to work with NATO and with individual allied and partner nations to counter the use of human shields. It will find a willing partner in NATO. In his capacity as NATO supreme allied commander Europe, U.S. General Curtis Scaparrotti in 2019 said it is “essential” that NATO member countries take additional steps to hold terrorists accountable for human-shields use. Scaparrotti specified that “measures at the national level,” including “criminalisation, robust national criminal law enforcement, active prosecution, imposition of sanctions, international cooperation, and spotlighting violations … are key in order to deter, hinder, and impose accountability for violations of international law such as the use of human shields” and would “become a major and substantial contribution to the better planning and conduct of NATO operations and missions.”

Finally, Congress should request that the administration pursue a legally binding UN Security Council Resolution (UNSCR) focused on countering human shields use by terrorists. It would not have to address a particular situation, armed conflict, or illicit armed group, and may not draw a veto from China or from Russia (which itself has repeatedly complained of human shields use against it).The resolution could require all member states to take steps to hinder, and impose consequences for, human shields use. This includes adopting national legislation criminalizing human shields use. Similar resolutions have already required national legislation and other measures to counter terrorism, the recruitment of foreign fighters, and the proliferation of nuclear, chemical and biological weapons.

Congress has led the way before in combating the use of human shields; it should lead again.

Orde Kittrie is a senior fellow at the Foundation for Defense of Democracies (FDD) and law professor at Arizona State University.  Matthew Zweig is a senior fellow at FDD. FDD is a nonpartisan think tank focused on foreign policy and national security issues. Follow them in twitter @OrdeFK and @MatthewZweig1